CITATION: Bonilla v. Great-West Life Assurance Company et al, 2016 ONSC 2249
COURT FILE NO.: CV-10-00410279
DATE: 20160404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENDA BONILLA
Plaintiff
– and –
GREAT-WEST LIFE ASSURANCE COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE
Defendants
Kevin Doan, for the Plaintiff
Keith Geurts and Barry Stork for the Defendant, Canadian Imperial Bank of Commerce
HEARD: WRITTEN SUBMISSIONS
COSTS ENDORSEMENT
DIAMOND J.:
[1] On March 3, 2016, I released my Reasons for Decision which granted the motion for summary judgment brought by Canadian Imperial Bank of Commerce (“CIBC”). I then invited counsel for the parties to serve and file written costs submissions pursuant to a fixed schedule.
[2] I have now received and reviewed the costs submissions of both parties. There does not appear to be any dispute that CIBC is, at a minimum, entitled to its costs of both the motion and the action on a partial indemnity basis. The divergence in the positions of the parties relates primarily to (a) CIBC’s claim for costs of its motion on a substantial indemnity basis due to the plaintiff rejecting CIBC’s two previous Offers to Settle, and (b) the amount of hours charged and sought to be recovered by CIBC.
[3] Dealing first with CIBC’s request for costs on substantial indemnity basis, under Rule 49.10 of the Rules of Civil Procedure, CIBC has the onus of proving that it obtained a result more favourable than the terms of its Offers to Settle.
[4] CIBC’s first Offer to Settle was served on May 13, 2014 (prior to delivery of its motion for summary judgment) and offered the plaintiff payment of the all-inclusive sum of $15,000.00 in exchange for a dismissal of this proceeding. Apart from CIBC allegedly withholding payment of one month’s long term disability (“LTD”) payment due to the plaintiff under CIBC’s Income Protection-Long Term Plan, the crux of this proceeding was premised upon a theory that CIBC breached its duty of good faith by failing to fund a treatment plan specifically designed for the plaintiff.
[5] As CIBC has continued to remit payment of the plaintiff’s LTD payments throughout the course of this proceeding until the present day, I find that the provisions of Rule 49.10 would have indeed been invoked through the plaintiff’s rejection of CIBC’s first Offer to Settle. Had CIBC’s first Offer to Settle remained open for acceptance until the commencement of the hearing of its motion, CIBC would have been prima facie entitled to its costs of the motion on a substantial indemnity basis.
[6] However, CIBC then delivered a second Offer to Settle on September 8, 2015. This second Offer to Settle superseded and “replaced” its first Offer to Settle. The terms of CIBC’s second Offer to Settle provided for payment of the all-inclusive sum of $100,000.00 to the plaintiff in exchange for, inter alia, the plaintiff tendering her resignation from employment with CIBC. That term (resignation), if accepted, would have also terminated the plaintiff’s entitlement to LTD benefits.
[7] In my view, CIBC has not satisfied me that the result of its motion (a dismissal) was more favourable than the terms of its second Offer to Settle. As stated, the plaintiff is still being paid LTD benefits to this day, and the overall value of those continuing LTD benefits is unknown at this time. I cannot therefore conclude that the value of the plaintiff’s ongoing LTD benefits is more or less than the $100,000.00 offered by CIBC in exchange for the plaintiff’s resignation.
[8] I therefore find that CIBC is entitled to its costs of the motion and the action on a partial indemnity basis.
[9] Dealing with the quantum of CIBC’s costs, I am mindful that the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[10] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[11] As stated, the crux of the plaintiff’s claim was premised upon a theory that CIBC acted in bad faith. I rejected that position in my Reasons for Decision, and believe that the costs award should take the unproven allegations of bad faith into account. As stated by the Supreme Court of Canada in Hamilton v. Open Window Bakery Ltd. 2004 SCC 9:
“An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not lead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attempts will be correctly considered to amount to "reprehensible, scandalous or outrageous conduct". However, allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception. When, as here, a party makes such allegations unsuccessfully at trial and with access to information sufficient to conclude that the other party was merely negligent and neither dishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and-client scale are appropriate.”
[12] I have reviewed the hours charged by counsel for CIBC, and compared those amounts to the amounts sought by the plaintiff it her own Bill of Costs. The total amounts sought respectively by the plaintiff and CIBC for costs of the motion on a partial indemnity basis were very similar.
[13] The fixing of costs is a discretionary exercise under section 131 of the Courts of Justice Act. As stated, that discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. In the circumstances of this case, I believe that a fair and reasonable result would be awarding CIBC its costs of the motion payable by the plaintiff in the all-inclusive amount of $37,500.00 and its costs of the action payable by the plaintiff in the all-inclusive amount of $20,000.00.
Diamond J.
Released: April 4, 2016
CITATION: Bonilla v. Great-West Life Assurance Company et al, 2016 ONSC 2249
COURT FILE NO.: CV-10-00410279
DATE: 20160404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENDA BONILLA
Plaintiff
– and –
GREAT-WEST LIFE ASSURANCE COMPANY and CANADIAN IMPERIAL BANK OF COMMERCE
Defendants
COSTS ENDORSEMENT
Diamond J.
Released: April 4, 2016